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Wednesday, February 1, 2012

Appeals Hearing in NorthSide Case Got Heated

Posted By on Wed, Feb 1, 2012 at 2:30 PM

NorthSide case throw-down was this morning at Easter District Court of Appeals - IMAGE VIA
  • Image via
  • NorthSide case throw-down was this morning at Easter District Court of Appeals
If you're a developer, and you want the Board of Aldermen to subsidize your huge redevelopment, how specific must you be about your plans? 

That was the central question this morning during a hearing in Missouri's Eastern District Court of Appeals downtown. And things got a bit heated.

Developer Paul McKee himself showed up to the proceeding -- the first time in this particular lawsuit. For years, he's been touting his $8.1 billion plan to transform 1,100 acres of North St. Louis, and insists that he'd been specific enough when he convinced the Board of Aldermen several years ago to pledge $390 in public subsidies for his vision.

But a group of Fifth Ward residents who live in the plan's footprint beg to differ, and state circuit judge Robert H. Dierker has agreed with them: State statute, Dierker ruled in July 2010, requires a developer to describe a specific "project."

Legislators did not define project when they wrote the law, so Dierker came up with his own. And McKee, he felt, failed to present any specific "project."

Never once this morning did McKee's lawyer, Paul Puricelli, use the term "judicial activism" as he argued before Judges Robert Dowd, Mary Hoff and Sherri Sullivan. But he definitely implied it by saying that Dierker had, with his ruling, "grafted" and "added" a "new definition" to the statute that legislators had never intended.

(Which would be quite ironic if true, since Judge Dierker is famously conservative).

Paul Puricelli, legal counsel for developer Paul McKee - IMAGE VIA
  • Image via
  • Paul Puricelli, legal counsel for developer Paul McKee
Puricelli further argued that the plaintiffs never brought up the "project" issue at trial. Then he reiterated his long-standing point that taxpayers have in no way written Paul McKee a check for $390 million. Rather, McKee must put up the money himself, do the infrastructure work, have the city check that work, and only then would he be reimbursed.

It's McKee whose neck is really on the line, Purcielli asserted -- and isn't that what we want for desolate North St. Louis? A private investor?

Then it was Bevis Schock's turn to defend the trial court's ruling and his Fifth Ward residents.

"This isn't about policy," he told the panel. "This is about houses." To Schock, the proposed development has devalued his clients' land and imperiled their private property by subjecting it to the threat of eminent domain.

Schock was pressed by the judges for his own interpretation of "project." He said a "project" would amount to a specific building that has evidence of financing and its own cost-benefit analysis.

And once again, Schock expressed incredulity about McKee's grand scheme.

Bevis Schock, representing Fifth Ward plaintiffs in the NorthSide case
  • Bevis Schock, representing Fifth Ward plaintiffs in the NorthSide case
"When one looks at the assumptions made," he said, "one realizes that the plan is from another universe. Twenty percent growth rate? Six hundred thousand homes valued at $450,000 per unit? That's much higher than we have in Ladue."

McKee and company's plan, Schock said, is so unreasonable, "it's impossible that they believe what they submitted." The only explanation, then: The guy's a liar with his fingers in the public purse.

That was too much for Puricelli.

"If you're going to accuse my client of intentional misconduct," he railed in his three-minute reubttal, "you better get it right."

After months of complaint from the plaintiffs that McKee hadn't been specific enough, Puricelli said, Schock finally ventured his own definition of "project": a specific building with specific financing.

"Wrong," said Puricelli. "That's not in the state statute." And to be fair, it isn't. The question then would be: Does Schock's definition fit with Dierker's definition? And will the appeals judges even approve of Dierker's definition?

McKee himself betrayed little emotion in the galley. But his presence was interesting. Maybe he'd taken to heart the comment from Judge Dierker's July 2010 ruling: "The Court did not have pleasure of meeting Paul McKee at trial."

Well, this time they have.

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